Judge: Text sender not liable for NJ crash

May 25, 2012 11:56:21 AM PDT

ANDREW DUFFELMEYER Associated Press

MORRISTOWN, N.J. - May 25, 2012 --

A woman who texted her boyfriend while he was driving cannot be held liable for a car crash he caused while responding, seriously injuring a motorcycling couple, a judge ruled Friday in what is believed to be the first case of its kind in the country.

A lawyer for the injured couple argued that text messages from Shannon Colonna to Kyle Best played a role in the September 2009 wreck in Mine Hill. But Colonna's lawyer argued she had no control over when or how Best would read and respond to the message.

State Superior Court Judge David Rand sided with Colonna's lawyer, dismissing claims against the woman in a lawsuit filed by crash victims David and Linda Kubert, who are also suing Best. David Kubert had his left leg torn off above the knee, while his wife eventually had her left leg amputated.

Stephen Weinstein, the Kuberts' attorney, has argued that Colonna should have known Best was driving and texting her at the time. He argued that while Colonna was not physically present at the wreck, she was "electronically present," and he asked for a jury to decide Colonna's liability in the case.

But Colonna testified at a deposition she didn't know whether Best was driving at the time.

Best has pleaded guilty to distracted driving, admitting he was using his cellphone and acknowledging a series of text messages he exchanged with Colonna around the time of the accident; the content of the messages is unknown. Records show Best responded to a text from Colonna seconds before dialing 911.

Best was ordered to speak to 14 high schools about the dangers of texting and driving and had to pay about $775 in fines, but his driver's license was not suspended.

Lawyers for Best and Colonna declined to comment after the hearing, and neither couple was in court.

Weinstein said Friday the Kuberts are disappointed with the decision and an appeal will be filed, but the couple is hopeful the attention the case has drawn will lead to change.

"Even though the case against Shannon Colonna has been dismissed, they are gratified that if by bringing the case they have accomplished the goal of making people think before they text, whether while driving or while the recipient is driving," he said.

Rand said it's reasonable for text message senders to assume the recipients will behave responsibly, and he also noted drivers are bombarded with many forms of distraction, whether they be text messages, notifications from smartphones, GPS devices or signs along the road.

"Were I to extend this duty to this case, in my judgment, any form of distraction could potentially serve as the basis of a liability case," Rand said.

But Rand stressed his decision shouldn't be read as minimizing the need for attentiveness while driving, and he said Americans have become "almost addicted" to wireless communication.

"That is the reality of today's world," he said.

Weinstein hopes for proceedings to move forward within the next several months.